Com. v. Streeter

• Decision Date: 25 March 2008
• Docket Number: No. 07-P-300.,07-P-300.
• Citation: 883 N.E.2d 290,71 Mass. App. Ct. 430
• Parties: COMMONWEALTH v. Matthew STREETER.
• Court: Appeals Court of Massachusetts

883 N.E.2d 290

71 Mass. App. Ct. 430

COMMONWEALTH v. Matthew STREETER.

No. 07-P-300.

Appeals Court of Massachusetts, Suffolk.

Argued December 17, 2007.

Decided March 25, 2008.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Derege B. Demissie, Cambridge, for the defendant.

Present: COWIN, BROWN, & KAFKER, JJ.

KAFKER, J.

The strong aroma of marijuana emanating from an apartment led police to knock on its front door and announce their presence. The nervous' behavior and evasive answers of the defendant, Matthew Streeter, and the known presence of others in the apartment resulted in the police requiring the locked apartment to be opened and a limited search to be conducted, prior to obtaining a search warrant. Inside the apartment they saw marijuana in plain view, and one officer felt a gun in a closed bag. At issue is whether the evidence obtained from inside the apartment should have been excised from the search warrant affidavit, and whether the affidavit, shorn of improper information, provided probable cause to search the apartment. The motion judge suppressed the evidence. We reverse.

1. Background. The findings of fact of the motion judge are summarized below. On August 12, 2004, Boston police Officer Gregory Brown and two other officers, Craig Jones and Larry Celester, entered 11 Abbot Street, a three-story brick apartment building containing six to twelve units. The officers had received a radio dispatch call regarding a home invasion of apartment twelve, which is located on the third floor. As they proceeded up the stairs to apartment twelve, the officers smelled fresh marijuana emanating from apartment six on the second floor, but chose to continue investigating the home invasion. After knocking twice on the door of apartment twelve and receiving no response, the officers contacted the dispatcher, discontinued the immediate investigation, and descended the stairs. While passing apartment six again, the officers "got a stronger odor of the marijuana coming from inside."

Apartment six has two doors, a front door and a rear door, that enter into the same hallway. The officers knocked on the front door. A male voice from inside asked who it was, and the officer "announced his office and asked if he could speak." Officer Brown heard "what appeared to be people running around the apartment." Upon receiving no response to his inquiry, he knocked again. The defendant then opened the rear door and stepped into the hallway, locking the door behind him. He wore only a pair of jeans with no shirt or shoes, and appeared nervous and shaking. His eyes were darting around, and he had difficulty speaking.

Believing that there was still someone inside the apartment, Officer Brown asked the defendant if anyone else remained inside. The defendant responded that his four year old daughter was the only person in the apartment. When the officer asked if the defendant had keys to the apartment, he said no. Officer Brown also said that he could smell fresh marijuana, and the defendant responded that he had smoked marijuana earlier. Officer Brown said no, that he smelled fresh marijuana (rather than burned marijuana) coming from inside the apartment. Officer Brown has sufficient experience to distinguish between fresh and burned marijuana.

When asked again if there was anyone else in the apartment besides his daughter, the defendant replied that his friend was inside. The defendant was "instructed to have his friend open the door." The defendant's friend, Lorenzo Bryant, opened the rear door.

The rear door opened into the kitchen, and a kitchen table approximately six to eight feet from the open door was visible from the hallway. While standing in the hallway, Officer Brown noticed two bags of marijuana and two cigar boxes containing loose marijuana and seeds on the table. He also saw a little girl crying. Officer Brown entered the apartment, picked up the little girl, and gave her to the defendant, who was still in the hallway. While" Bryant and the defendant were in the hallway, Officers Brown and Celester "did a protective sweep of the apartment." During the sweep, the officers entered the kitchen, the living room, one bedroom (and possibly a smaller bedroom), and a bathroom. Officer Celester picked up a blue canvas bag on top of a cabinet in the kitchen, and felt it with two hands. He believed that there was a gun in the bag, but did not open the bag.

Both the defendant and Bryant were in the hallway throughout this investigation. After the protective sweep, the officers placed both the defendant and Bryant under arrest for possession of marijuana. The officers then "froze" the apartment while they obtained a search warrant.

The search warrant affidavit, which was drafted by Detective George Cardoza,¹ states as follows: Officer Brown "smelled a strong aroma of marijuana emanating from apartment [six]" while investigating an alleged home invasion in apartment twelve of the same building. The "aroma grew stronger" as the officer approached the door. After "knocking] and announcing] his office[,] Officer Brown could hear movement inside the apartment." An occupant, who later identified himself as the defendant, Matthew Streeter, then "exited the apartment from the rear door, which is adjacent to the front door and locked the door behind him." When asked if anyone else was in the apartment, the defendant was "evasive." He finally said "that his little girl was inside." "Officer Brown asked if he had keys to the apartment, and the [defendant] said he did not have any keys." When asked "why he would lock his daughter in the apartment with the keys, the [defendant] stated that his friend was also inside. Officer Brown asked the [defendant] if his friend could open the door. The friend, ... Lorenzo Bryant, opened the rear door and Officer Brown observed in plain view on the kitchen table two shoe boxes with what appeared to be plant seeds and a green leafy substance. Officer Brown also observed clean plastic baggies that appeared to be cut, a small plastic bag containing a green leafy substance and cigar blunts." Based on his experience as a narcotics officer, which was recounted in the affidavit,² Officer Brown "believed the plant seeds to be marijuana seeds, the green leafy substance to be marijuana [and] the cut plastic baggies to be packaging used in the sale of marijuana." The officers also "observed [the defendant's] four ... year old daughter ... sitting in the corner of the living room crying. The[ ] officers then removed the child from the apartment ... [and] seized the apartment and performed a protective sweep." During this sweep, "Officer Celester observed a large blue canvas bag on top of the cabinets in the kitchen.... [B]elieving that the bag may contain marijuana or a weapon [the officer] frisked the bag and felt what he believed to be a firearm, possibly a shotgun, inside the bag."³

That same day, August 12, 2004, the warrant was issued to search the apartment for marijuana, any implements and paraphernalia related to the use and sale of marijuana, and firearms or ammunition. At 10:30 P.M., the officers executed a search that recovered both boxes of marijuana on the table, a small plastic bag containing marijuana and money, and another bag containing marijuana residue. Additionally, the gym bag was opened, revealing a twelve-gauge sawed-off shotgun. Several rounds of ammunition were also found, along with a nine millimeter magazine and papers belonging to the defendant.

On August 19, 2004, the defendant was indicted by a grand jury for possession of a sawed-off shotgun, a large capacity firearm, and possession of a firearm without a firearms identification card in violation of G.L. c. 269, §§ 10(c), 10(m), and 10(h), respectively, and possession of a class D controlled substance in violation of G.L. c. 94C, § 34. On March 31, 2005, the defendant moved to suppress the evidence seized from the apartment.⁴

After a hearing held on October 7, 2005, the motion to suppress this evidence was allowed on October 13, 2005. Applying Commonwealth v. DeJesus, 439 Mass. 616, 621, 790 N.E.2d 231 (2003), the motion judge concluded that the police should not have entered the apartment prior to seeking to obtain a search warrant because there was not specific information to support an objective reasonable belief that evidence would be destroyed unless such preventive measures were taken. Therefore the evidence they observed inside the apartment would have to be excised from the search warrant affidavit, and without such evidence the affidavit did not establish probable cause. The Commonwealth filed a motion to reconsider on December 5, 2005, which was denied. A single justice of the Supreme Judicial Court allowed the Commonwealth to pursue an interlocutory appeal, and reported the case to this court. The Commonwealth's appeal in this court was docketed on February 26, 2007. We reverse the decision allowing the motion to suppress.

2. Analytical framework. In DeJesus, 439 Mass. at 621, 790 N.E.2d 231, the Supreme Judicial Court set out the substantive standards and analytical approach applicable to this case. The court emphasized that "[t]he right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] was designed to circumscribe by the general requirement of probable cause." Id. at 619, 790 N.E.2d 231, quoting from Commonwealth v. Forde, 367 Mass. 798, 805, 329 N.E.2d 717 (1975). Establishing probable cause to believe that evidence of criminal activity would be found in the home was, the court held, only the first step in the analysis. DeJesus, supra. A nonconsensual entry and search, prior to obtaining a warrant, requires exigent circumstances. Ibid.

In DeJesus, 439...